Introduction: Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020)

On January 31, 2020, the Board of Immigration Appeals (BIA) published a precedent decision in Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020) [PDF version]. The Board concluded that when an alien who is awaiting an immigration court hearing in Mexico under the Migrant Protection Protocols fails to appear at a hearing after having received sufficient notice of the hearing, the Immigration Judge should enter an in absentia removal order against the alien. Under the Migrant Protection Protocols, certain aliens seeking asylum at the Southwest Border are returned to Mexico while they await their hearings.

In this article, we will examine the Board’s analysis and conclusions in Matter of J.J. Rodriguez.

Factual and Procedural History: 27 I&N Dec. at 762-63

The respondent, a native and citizen of Honduras, had applied for admission to the United States at the San Ysidro, California, port of entry.

On April 3, 2019, the Department of Homeland Security (DHS) served the respondent with a notice to appear, charging him with removability under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA) as an alien who did not possess valid entry documents at the time of admission.

The respondent’s notice to appear contained his signature, acknowledging that the DHS had served him with the notice to appear. The notice to appear itself informed the respondent that his removal hearing would be held on May 15, 2019, at 12:30 PM in the San Diego Immigration Court.

The DHS provided the respondent with a document titled “Migrant Protection Protocols Initial Processing Information” (“MPP Sheet”). The MPP Sheet instructed the respondent to arrive at a specific location at the San Ysidro port of entry at 9:00 AM on May 15, 2019, in order that he could be transported to the San Diego Immigration Court for his hearing. The Board noted that the respondent was provided with a copy of the MPP Sheet in his native Spanish language as well as English, and that the respondent had signed both MPP Sheets.

The DHS returned the respondent to Mexico under the MPP to await his removal hearing. The respondent failed to present himself at the San Ysidro port of entry at the time stated on the MPP, and thus did not appear at his removal hearing on May 15, 2019.

The DHS requested that the Immigration Judge enter an in absentia order of removal — arguing that the respondent had been provided with adequate notice of his hearing and that the MPP sheet explained to the respondent what he needed to do to appear for his hearing. The Immigration Judge declined to enter an in absentia removal order, citing to due process concerns. The Immigration Judge concluded that the respondent was not provided with sufficient notice of his hearing and on that basis terminated the proceedings against the respondent without prejudice. The Immigration Judge did not permit the DHS to submit evidence regarding the respondent’s removability.

The DHS appealed from the Immigration Judge’s decision to the BIA. While the appeal was pending, the Board requested supplemental briefing from the DHS and amici curiae.

Analysis and Conclusions: 27 I&N Dec. at 763-66

The Board explained that an Immigration Judge may only “terminate removal proceedings under [specific] circumstances identified in the regulations” and where “the charges of removability against the respondent have not been sustained.” Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018) [see article]. For the forthcoming reasons, the Board agreed with the DHS that neither of the circumstances set forth by the Attorney General in Matter of S-O-G- & F-D-B- described the instant case.

Migrant Protection Protocols Generally: 27 I&N Dec. at 763-64

The Board began with an explanation of the Migrant Protection Protocols, which we discuss in a separate article on site [see article]. The Migrant Protection Protocols grant the DHS the discretion to return “certain foreign individuals entering or seeking admission to the U.S. from Mexico-illegally or without proper documentation-… to Mexico … for the duration of their immigration proceedings” [PDF version]. The statutory basis for the Migrant Protection Protocols is found in INA 235(b)(2)(C). Under the provision, the DHS may return an alien arriving on land from a foreign territory contiguous to the United States (Canada or Mexico) to the territory whence the alien arrived pending a removal proceeding under INA 240. The implementing regulations for the provision — 8 CFR 235.3(d) and 8 CFR 1235.3(d) — provide that an alien returned to Canada or Mexico under INA 235(b)(2)(C) shall be considered detained within the meaning of INA 235(b), and may be ordered removed in absentia if he or she fails to appear for the removal hearing.

As an initial matter, the Board concluded that the DHS complied with the INA and its implementing regulations in returning the respondent to Mexico to await his removal hearing. In footnote 3 to its decision, the Board alluded to constitutional questions about the INA 235(b)(2)(C) and the Migrant Protection Protocols, which were raised by amici and are the subject of ongoing litigation in federal court. The Board noted that it does not have jurisdiction to rule on the constitutionality of the INA and its implementing regulations and thus did not consider the issue. See Matter of Fuentes-Campos, 21 I&N Dec. 905, 912 (BIA 1997) [PDF version].

Immigration Judge Erred in Not Issuing In Absentia Removal Order: 27 I&N Dec. at 764, 765

The Board has held that “[d]ue process requires that the alien be provided with notice of proceedings and an opportunity to be heard.” Matter of G-Y-R-, 23 I&N Dec. 181, 186 (BIA 2001) [PDF version]. The Board held that the notice provided to the alien must “be reasonably calculated to apprise the alien of his or her scheduled hearing and the immigration charges.” Id. Because “actual notice” is sufficient under Board precedent, the Board held that the level of notice that the instant respondent received satisfied due process requirements. Id.

The Board explained that the respondent was personally served with the notice to appear. In accord with INA 239(a)(1)(D) and (G), the notice to appear advised the respondent of the time and place of his removal hearing, the charges against him, and the consequences for failing to appear. The record did not give any indication that the notice to appear was deficient. Furthermore, because the DHS filed the notice to appear with the San Diego Immigration Court, authority over the respondent’s removal proceedings vested in that court. See Matter of Bermudez-Cota, 27 I&N Dec. 441, 444-45 (BIA 2019) [see article].

Because the respondent was to be returned to Mexico to await his hearing date, the DHS also provided the respondent with an MPP sheet. The MPP sheet advised the respondent exactly when and where he needed to arrive at the port of entry in order that he could be transported to his hearing.

The Immigration Judge expressed concern that the respondent may not have understood the instructions on the MPP sheet, thus giving rise to due process concerns. The BIA concluded that the immigration judge’s concerns were unsupported by the record, for not only did the respondent, a native Spanish-speaker, sign the English-language version of the MPP sheet, but he also signed the Spanish-language version of the MPP sheet. Furthermore, both the Board and the United States Court of Appeals for the Ninth Circuit — in whose jurisdiction [see article] the instant case arose — have recognized that there is no requirement in the INA that an alien be provided with the notice to appear in any language other than English. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1155 n.4 (9th Cir. 2004) [PDF version]; Matter of D-R-, 25 I&N Dec. 445, 458 n.10 (BIA 2011) [see article]. Thus, the Board disagreed with the Immigration Judge’s conclusion that the level of notice provided to the respondent was insufficient to satisfy due process requirements.

In footnote 4 to its decision, the Board recognized that an alien does have recourse if his or her failure to appear was on account of insufficient notice of the time and place of the removal hearing and how to appear. INA 240(b)(5)(C), and its implementing regulation at 8 CFR 1003.23(b)(4)(ii), allows an alien to file a motion to rescind an in absentia removal order and reopen proceedings in the event that the alien was not provided with sufficient notice. The Ninth Circuit described these motions as a “critical safeguard” for aliens who are not provided with sufficient notice. Flores-Chavez, 362 F.3d at 1156.

The Board noted that an alien need not be physically in the United States in order for an Immigration Judge to retain jurisdiction over the pending removal proceedings and conduct an in absentia hearing. Matter of Sanchez-Herbert, 26 I&N Dec. 43, 44 (BIA 2012) [see article]. In footnote 5, the Board noted that the Immigration Judge may opt to continue removal proceedings if he or she determines that there is “good cause” to do so — and that needing more information to determine if in absentia removal is appropriate may rise to the level of good cause in particular cases. Matter of L-A-B-R-, 27 I&N Dec. 405, 407 (A.G. 2018) [see article].

In light of the foregoing, the Board held that where the DHS returns an alien to Mexico to await a removal hearing under the Migrant Protection Protocols, and where the DHS provides the alien with sufficient notice of the removal hearing, the Immigration Judge should enter an in absentia removal order if the alien fails to appear for the hearing. Since the respondent in the instant case received sufficient notice, the Board concluded that the Immigration Judge should have ordered him removed in absentia.

Termination of Proceedings Was Not Warranted: 27 I&N Dec. at 765-66

The Board explained that the amici briefs submitted in support of the respondent raised due process concerns generally in cases arising under the Migrant Protection Protocols. Specifically, amici stated that aliens returned to Mexico under the Protocols often have difficulty obtaining counsel. The Board concluded, however, that the cases of aliens who allegedly had difficulty obtaining counsel was not presented in the matter before it. The Supreme Court has recognized that statements by counsel are not evidence and are not afforded evidentiary weight. INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984) [PDF version].

The Board concluded that the arguments and anecdotal evidence provided by amici did not establish that the Migrant Protection Protocols, as applied to the instant respondent, violated the respondent’s due process rights. Furthermore, the Board found that the arguments provided by amici did not establish that the Migrant Protection Protocols are facially invalid such that every case involving an alien who fails to appear after being returned to Mexico under the Protocols should have his or her removal proceedings terminated.

The Board found that there was no basis for terminating the removal proceedings against the respondent. Because authority over the proceedings vested in the San Diego Immigration Court when the DHS filed the notice to appear with said court, and because the DHS not only did not move to dismiss the notice to appear, but also opposed terminating proceedings, the Immigration Judge did not have the authority to terminate the proceedings. The Board has held that an Immigration Judge’s terminating of proceedings in such circumstances impinges on the DHS’s exclusive authority to control the prosecution of removable aliens. Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 171 (BIA 2017) [see article]. The Board added that because the Immigration Judge refused to let the DHS submit evidence regarding the respondent’s removability, the Immigration Judge necessarily had no basis for determining that the DHS had not sustained the charges against the respondent.

Decision: 27 I&N Dec. at 766

The Board sustained the DHS’s appeal, vacated the Immigration Judge’s decision terminating proceedings, and reinstated the removal proceedings against the respondent and remanded the record to the Immigration Judge. The Board held that the Immigration Judge should have granted the DHS’s request to proceed with the in absentia removal hearing. The Board provided that if the DHS establishes the respondent’s removability in the in absentia removal hearing, then the Immigration Judge should enter an in absentia removal order against the respondent.

Conclusion

The Board’s decision in Matter of J.J. Rodriguez expressly provides that an alien who is returned to Mexico under the Migrant Protection Protocols then fails to appear for a hearing, the Immigration Judge should order the alien removed in absentia if the alien was provided with adequate notice to appear and if the DHS sustains the charges.

There is no presumption in favor of an alien subject to the Migrant Protection Protocols who fails to appear for his or her removal hearing. Immigration Judges will be required to consider whether the alien received adequate notice to appear in the same manner as in cases not involving the Migrant Protection Protocols. Thus, it is important for aliens returned to Mexico under the Migrant Protection Protocols to ensure that they appear for their hearings as instructed, lest they end up with an in absentia removal order without having had the opportunity to present their case.

Any alien facing removal proceedings, including those under the Migrant Protection Protocols, should seek immigration counsel for case-specific guidance and representation. If an alien believes that he or she was improperly ordered removed in absentia based on inadequate notice of the time and place of the hearing and, in the context of the Migrant Protection Protocols specifically, how to appear, he or she should consult with an experienced immigration attorney for guidance on whether the case may be amenable to reopening.